U.S. v. Bowen, 76 M.J. 83

Military Justice Personnel: Military Judge: Discretion

1. under the circumstances of this case, the military judge abused his discretion by admitting under MRE 803(2) the hearsay testimony that the victim nodded her head in response to a question by a law enforcement officer asking her whether her husband beat her without adequately considering the victim’s mental capacity at the time in question

Core Criminal Law Subjects: Evidence: Hearsay › Excited utterances

1. the excited utterance exception to the hearsay rule in MRE 803 provides for the admissibility of a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition
2. the implicit premise of the excited utterance exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate
3. (to determine whether a hearsay statement qualifies as an excited utterance, it must pass a three-pronged test: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event); and relevant to the third prong of this inquiry is the physical and mental condition of the declarant)
4. under certain circumstances, a nonverbal hearsay statement such as a head nod might qualify as an excited utterance
5. in this case, the victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not admissible in evidence as excited utterance exception to the hearsay rule where the military judge did not adequately consider the victim’s mental capacity at the time in question; given the extent of the victim’s injuries in this case — including a subdural hematoma, a traumatic brain injury, seventy percent loss of vision, and the loss of smell — and the fact that her blood alcohol level was nearly three times the legal limit permitted for driving, whether the victim was mentally capable of understanding the question posed to her when she nodded her head is critical to deciding whether her nonverbal statement was admissible as an excited utterance

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether an error, constitutional or otherwise, was harmless is a question of law that an appellate court reviews de novo; and for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings
2. a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; an appellate court evaluates the harmlessness of an evidentiary ruling by weighing: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
3. in this case, the erroneous admission into evidence of the victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not harmless where the record demonstrated a closely contested court-martial, the outcome of which turned on the members’ resolution of who caused the victim’s injuries; the evidence was likely a material to the members’ resolution of this issue, especially where the trial counsel emphasized it during his closing argument and the government’s key witness had apparent motives to lie; as such, the erroneous admission of the victim’s head nod identifying appellant as her attacker materially prejudiced his substantial rights

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact
2. whether an error, constitutional or otherwise, was harmless is a question of law that an appellate court reviews de novo; and for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings
3. a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; an appellate court evaluates the harmlessness of an evidentiary ruling by weighing: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question